Volume 51 — Arkansas Reports

M. T. Sanders, Judge. The law of this case was settled in ^5 Ark., pop, and the account filed by the master, Quarles, has already been adjudicated, nothing being now presented different from the cause as it appeared in the account presented by the former master, Parrott, which was overruled by this court.

<p>1. Administration: Jurisdiction of equity; Surcharging accounts.</p> <p>On a bill to surcharge and falsify an administrator’s accounts, he will not be charged with the value of notes and lumber belonging to the estate, alleged to have been unaccounted for, when it is not shown that the notes were collected, or that the lumber was sold and the money appropriated by the administrator to his own use, and where, so far as the proof shows, such notes and lumber still belong to the estate.</p> <p>2. Same : Same.</p> <p>In a proceeding to falsify and surcharge the settlement accounts of an administrator, the chancellor referred the case to a special master to state an account. The defendant excepted to the master’s report and his exceptions were sustained to all the paragraphs of the report except the fourth and fifth. A decree based on those paragraphs was reversed, on the defendant’s appeal, and the case was referred to a special master appointed by the supreme court. As there was no appeal by the plaintiff, the inquiries of the master were confined, by the order of this court, to the statement contained in the fourth and fifth paragraphs of the report made by the master in the court below. The master appointed here allowed credits amounting to a large sum, which the administrator had neglected to take in his probate settlements, and charged him with a smaller sum, with which his answer admits he was erroneously credited in such settlements. Held: That although the item thus charged is not contained in the statement submitted to the master, yet, as the credits he allows the administrator can only stand upon the principle that whoever demands equity must do equity, their allowance should, by the same rule, be upon terms of charging him with the item which he admits to be due from him to the estate.</p>

J. W. Butler, Judge. The appellant, Jones, who was the plaintiff in the court below, to secure an existing indebtedness of $235.66 to V. Y. Cook, and also the amount of future advances to be made by Cook, executed to B. M. Cook a deed of trust, conveying to the latter certain mules, hogs and farming implements, and also all the corn and cotton which he might raise during the year 1886, on a farm belonging to the appellee, Horn.

G. S. Cunningham, Judge. The title of the land in controversy remained in the United States government until the issuing of final proof certificate, January 12th, 1885, and the statute of limitations did not begin to run prior to the vesting of the equitable title in the appellant. See Railway v. Prescott, 16 Wall, 603, and Diver et al. v. McSwine 22 Wall., 444; Friedheim, 43 Ark., 204.

H. C. Bunn, Sp. Judge. I. The burden of proof to show that the judgment of the county court was void, was on the appellee. Mansf. Dig., secs., 2870 — 1; 38 Ark., 157. In the absence of proof to the contrary, the'county court, a court of superior jurisdiction, will be presumed to have acted upon sufficient facts to maintain its action. 38 Ark., 157; 11 Id., 519. See also Freeman on Judgments, sec. 124, 3d Ed.; Ib., sec. 132; 28 Fed.

<p>APPEAL from Pike Circuit Court in Chancery.</p> <p>H. B. Stuart, Judge.</p> <p>The complaint in this action alleges, that on the second day of April, 1884, Joseph M. Perkins, being indebted to the plaintiff in a certain sum of money, in consideration thereof, and of any other indebtedness he might contract during that year, and to the time of the satisfaction of the mortgage mentioned below, executed to the plaintiff a mortgage, exhibited with the complaint, by which he conveyed to the plaintiff, in the usual form and by proper description, his crops, two mules and a wagon, with the usual power of seizure and sale in case of default, etc. That the mortgage was indorsed, “to be filed but not recorded,’’ and was filed in the recorder’s office, where it still remains, but that no affidavit had been subsequently filed therewith by the plaintiff, to show his interest therein. That plaintiff afterwards, during said year, furnished Perkins merchandise, money, etc., to a certain amount, and received from him a certain amount in cotton and money, leaving due the plaintiff a balance, the amount of which is stated. That during the following year the plaintiff furnished other supplies amounting to a sum named, upon the faith of the mortgage, and received cotton, etc., in part payment, leaving due the plaintiff upon the whole account, which is exhibited, a balance $187.81, which remains wholly unpaid. That of the mortgaged property only the two mules and the wagon remain in existence; that Perkins died about January, 1886, having the wagon and mules in his possession; that in the same month the defendant, as his administratrix, filed in the probate court an inventory of his estate, which is 'exhibited, including therein the mules and wagon. That afterwards the probate court, without notice to the plaintiff, made an order vesting absolutely in the defendant as widow of the mortgagor, Perkins, the entire estate of the latter, including said mules and wagon. (The order is exhibited and recites that the value of the estate is shown to be less that $300.) That the defendant holds the mules and wagon, claiming to own them under said order, and refuses to deliver them to the plaintiff, or to pay his debt, and that unless restrained by the court, she will sell or otherwise dispose of them, leaving the plaintiff without remedy for his debt. The prayer is for a restraining order, for judgment for the debt and a sale of the mortgaged property. The defendant demurred to the complaint on the grounds, (1) That the complaint discloses facts which preclude the plaintiff from equitable relief, and (2) "That the complaint on its face shows that the lien sought to be enforced therein is void.’’</p> <p>The demurrer was sustained and the complaint dismissed. The plaintiff appealed.</p> <p>The order vestihg the property in appellee was strictly in accordance with the law. Mansfield’s Digest, sec. 3.</p> <p>Even without the order of the probate court, the estate of J. M. Perkins, being found not to exceed $300, vested absolutely in his widow, the appellee. Hampton et al. v. Physick, Adm’r, 24 Ark., 561. Harrison v. Lamar, 33 lb., 824'. Word, Adm’r, v. West, 38 lb., 243.</p> <p>But it cannot be contended that she acquired any greater estate than her husband held. The property was subject to the lien of the mortgage at the time of the husband’s death, and the widow acquired it subject to the same lien. The fact of its being unrecorded does not alter the case, so far as she is concerned. Haskill v. Sevier, 25 Ark., 152. MeChire et al. v. Owens, 32 Ark., 443. Martin et al. v. Ogden, 41 Ib., 186.</p> <p>The endorsement upon the mortgage, “to be filed but not recorded,” is a compliance with the statute, even as against third parties. State v. Smith, 40 Ark., 431.</p> <p>Appellee had no inchoate right of dower in her husband’s personalty, and he could mortgage and dispose of it free from dower, which he did. McClure et al. vs. Owens, 32 Ark., 443, supra.</p> <p>The order of the probate court, vesting her deceased husband’s estate absolutely in her, did not vest in her a title better than the widow’s by dower in the personalty of her deceased husband, or one which she could set up against the mortgage. Ib.</p> <p>Nor was it necessary for appellant to probate his claim, even if there had been anything remaining to the estate of the mortgagor, Perkins. Ib., and authorities there cited.</p>

Jno. A. Williams, Judge. This was an action by a landlord against his tenant to enforce his lien for rent. The only defence was an account for improvements made upon the premises and pleaded as a set-off against the demand of the plaintiff.

M. T. Sanders, Judge. The will of Thomas H. Semmes was presented to the probate court for admission to record and was rejected. An appeal was taken to the circuit court, where a judgment rejecting the instrument was also rendered, and from that judgment this appeal is prosecuted.

Jno. A. Williams, Judge. 1. The nearest of kin living at the death of the intestate were his nephews and nieces, twenty-one in number, and besides these there were fifteen dead, leaving issue in all, thirty-six nieces and nephews.

G. S. Cunningham, Judge. Hill, Standish & Co. brought an action against Weems & Flippin, in which an order of attachment was issued and levied on certain goods in the hands of Shrygley. The latter, by interplea, claimed the attached property under a deed of assignment made by Weems & Flippin, conveying it to him for the benefit of their creditors.

R. D. Hearn, Judge. 1. Under the laws of Arkansas the land, though after-acquired, passed by the will. Review the common law rule, 11 Mod., 148; 1 Salk., 238; 4 Burrow, i960; 3 Atk., 7984 7 Term Rep., 419, which was followed in many of the American courts, (5 Johns.

J. W. Martin, Judge. A court of chancery has no power to lift the administration out of the probate court for the purpose of proceeding with it. It can only lend its aid to correct frauds, etc., uncover assets, etc., and if there are still further proceedings necessary, they must be had in the probate court. 33 Ark., 729; 33 Id., 575 ; 34 Id., 71; Turner v. Rogers, 49 Ark.; 4 S. W. Rep., 196; 39 Ark., 117-19; 32 Id., 297.

<p>1. Special Administrator: Revival of suit in name of; Construction of statute.</p> <p>The only object of sec. 5231, Mansfield’s Digest, providing for the revival of suits on the death of either party, in the name of a special administrator to be appointed by the court where the action is pending, was to prevent the dismissal of actions for the want of a party to prosecute or defend. It was not intended to empower the court in every case to set up a special administrator to represent all the parties in interest.</p> <p>2. Same: Same: In action to restrain sale for taxes.</p> <p>On the death of the plaintiff in an action to restrain the sale of lands for the non-payment of taxes, the suit should be revived in the name of his heir, and not in the name of a special administrator; and the latter cannot maintain it unless he acts as a substitute for a general administrator where the lands would be required as assets for the payment of debts.</p> <p>3. Same: Liability for costs.</p> <p>The statute, (Mansfield’s Digest, sec. 5233), exempts from liability for costs a special administrator in whose name a suit is revived, and it is error to render against him a judgment for costs.</p>

R. H. Powell, Judge. The sale was subject to confirmation and should have been rejected for any irregularity affecting the substantial rights of the parties. Mansfield’s Digest, sec. 350; 29 Ark., 307; Rorer on Jud. Sales, pp. 28, no, 121, 590-1-7, and note 1. The pleadings admit the land to be defendant’s homestead. It was exempt, Art. 9, sec. 3, Const, even after the issue of the order of sale. 48 Ark., 224. His schedule complied with sec. 3006, Mansfield’s Digest.

M. T. Sanders, Judge. The appeal in this case is from a conviction for forging a school warrant.

J. B. Wood, Judge. The whole law considered in the light of the circumstances and the motive to its enactment, it is as clear as language can make it, that the intent was to permit the druggist to fill the prescription of the physician, who had made and filed the affidavit, even though it called for alcohol or whiskey; and this intent must prevail.

Francis Circuit Court. M. T. Sanders, Judge. 1. It was neither alleged or proved that appellant had three days’ actual notice. The indictment merely charges that he “ was duly warned.” This is not the language of the statute, (Mansfield’s Digest, sec. 5907, etc.), or of similar import. A substantial compliance with the language of the statute is necessary. 18 Ark., 363; 39 Id., 2x6; 33 Id., 140; 41 Id., 226; 43 Id., 71; 47 Id., 488, especially. 2.

G. S. Cunningham, Judge. We submit that when West Brothers assigned to Hall & Carter, attorneys for Charles F. Penzel, the note first due, they assigned the mortgage pro tanto and not pro rata. This is the equitable rule as between assignor and assignee, and if at a later date, West Brothers transferred the remaining two notes to appellees, such transfer could not affect the right of appellants.

C. D. Wood, Judge. This court in the case of State v. Parker, 34 Ark., 158, held that ‘ ‘ twenty-five cords of wood ’ ’ was a sufficient description of the subject of the larceny. For the same reasons given in that case the description of the money in this indictment must be held sufficient.

<p>APPEAL from Yell Circuit Court, Dardanelle District.</p> <p>G. S. Cunningham, Judge.</p>

J. S. Little, Judge. 1. “Paper currency of the United States” not sufficiently descriptive or definite. Bish. Cr. Pro., vol.' 2, p. 321; 59 Ala., 73; 2 Gratt., 716. 2. It was misleading to instruct the jury that if the defendant lost the money gambling they would presume a fraudulent intent to convert to his use. This eliminates intent from crime. The intent to do a thing is always open to rebuttal. 1 Bish. Cr. Pro., 1099; 4 Ga., 14. 3.

R. H. Powell, Judge. The 'record fails to show that the jury was sworn as prescribed by law. The ten jurors who tried this case by consent were of the regular panel, who had been sworn, the presumption is, according to sec. 4006, of Mansfield’s Digest. The trial was for a misdemeanor, whose punishment was simply a fine.

Rufus D. Hearn, Judge. 1. The record in the justice’s court verified the plea of defendant. 32 Ark., 722. 2. There was no plea by defendant, and no issue to be tried. 34 Ark., 275 ; 37 Id., 54; 39 Id., 180. 3.

M. T. Sanders, Judge. This was a prosecution before a justice of the peace, under sec. 4524, Mansfield’s Digest, for selling whiskey within three miles of the Methodist church in Brinkley in the county of Monroe. The appellant was convicted and appealed to the circuit court, where he was again convicted and fined and appealed to this court.

James W. Butler, Judge. As to what an indictment should contain, see Mansf. Dig., sec. 2121., sub. 2d; as to certainty and form, 24 Ark., 591. It is vague and uncertain and therefore bad. The evidence shows that the clothes and coffin were furnished, and the witness as to value is uncorroborated by any testimony whatever, or any circumstances. See article in January No., 1888, Nat. Law Review, page 22. The indictment good. Mansf. Dig., secs, 1704-5; 24 Ark., 594.

J. M. Pittman, Judge. 1. The court erred in its instructions on justifiable homicide. If there is doubt as to guilt, there must be an acquittal; if there be justification or excuse, there cannot be guilt, Sackett on Inst, to Juries, p. 532; Sawyer v. People, 74 Ills. 2. The case of Duncan v. State, 49 Ark., not applicable to a case like this, where defendant had been annoyed, threatened and pursued by deceased. 3. Reading law books to juries is certainly bad practice. 4.

J. B. Wood, Judge. 1. The instructions refused by the court stated a correct principle of the criminal law. Wharton Am. Cr. Law, 4th Rev. Ed., sec. 568; 57 Ind., 80; 134 Mass., 215; 47 Am. Dec., 265; 36 Ga., 91; 1 Cr. Def., 125-6. 2. The question and reply of the judge was improper. 3. Reviews the evidence and contends that it is not sufficient to support the verdict. (The case was also argued orally.) Argued the case orally.

J. W. Martin, Judge. Blackwell and others petitioned the county court of Faulkner county, under the three mile law, for an order prohibiting the sale or gift of intoxicating liquors within three miles of a certain school-house. McCullough and other licensed dealers were permitted to become parties in the county court and contested the petition, which was denied.

J. E. Riddick, Judge. No license is necessary to sell fruits preserved in brandy. ,39 Ark., 204. Appellant sold them openly as he did other merchandise; he resorted to no trick or device to evade the law, and the fact that men could get drunk from drinking enough of the liquor, or that he had U. S. license, did not make him guilty of selling liquor. 43 Ark., 95. The evidence is that the liquor was intoxicating and was> sold as a beverage.

J. W. Butler, Judge. The defendant was tried on an indictment for rape and the jury convicted him of an assault with intent to commit rape. He was refused a new trial and sentenced according to the finding of the jury. Section 2288 Mansf.

R. H. Powell, Judge. There is only one question in this case: Can a party for a single sale be convicted of selling without license and for selling to a minor? 1 Bish. Cr. Law (6th Ed.), sec. 1058; lb., sec. 1054 and note to sec. 1061, and sec. 1057. Only one offence can be carved out of the same illegal act, and the state must elect which it will prosecute.

J. B. Wood, Judge. The revenue law and the local option law cannot be enforced in the same territory at the same time. The penalties provided by the revenue law are suspended in territory where no license can be issued.- Acts 1883, p. 212; Ib.,p. 192; Acts 1879, p. 33; 35 Ark., 414-422; 34 Id., 381; 41 Id., 305; lb., 308.

<p>APPEAL from Saline Circuit Court.</p> <p>J. B. Wood, Judge.</p> <p>1. The penalties prescribed by the Revenue Act are suspended in the prohibited districts where no license can be issued. See argument and authorities cited in brief in Mazzia's case, ante.</p> <p>2. There was no evidence upon which to base the instruction that the fact that the officials of Hot Springs allowed defendant to carry on the business and collected money from him for the privilege, was not a justification for a violation of the law. The instruction was abstract and misleading.</p> <p>3. The testimony of railroad and transfer agents as to freight being billed whiskey and beer was irrelevant, hearsay merely.</p> <p>4. The verdict is unsupported by the evidence.</p> <p>5. It is error to admit hearsay evidence, even though the court tell the jury not to consider it. It has a tendency to prejudice the jury.</p> <p>See brief in Mazzia's case, ante.</p>

APPEALS from Clark Circuit Court. R. D. Hearn, Judge. It is manifest from the instructions given and refused by the court, that it held to the idea that an intentional killing, when not committed under justifiable circumstances, is, per se, murder in the first degree. Is this law? We think not. There is wanting the elements of deliberation and premeditation, and the intent to kill does not, necessarily, imply either.

M. T. Sanders, Judge. Rogers brought an action at law against Yarnell & Bro., to recover a balance of $2587.13, which he alleged to be due to him on a mutual account running between the parties through a period of thirteen years. The answer of defendants denied any indebtedness to the plaintiff.

J. M. Pittman, Judge. This was a suit in equity brought by the State for the use of Benton county against T. H. Wood and the sureties on his bond as treasurer of that county. The object of the suit was to reform the bond and recover damages for a breach thereof. The informality in the bond consisted in its failure to specify any obligee. In other respects it was substantially in the form required by the statute.

Francis Circuit Court. H. N. Hutton, Special Judge. I. The words “in kind” used in the statute mean from each fund. Mansf. Dig., sec. 5749. Sec. 5851 was only-intended to apply to mistakes of fact, and not errors of law committed by courts; those can only be corrected by appeal. The question involved in 30 Ark., 306, was one of fact. 2. No time was given appellant to pay before the penalties were added. Mansf. Dig., secs. 5846, 5847, 5850. No proper notice was given.

G. S. Cunningham, Judge. The court erred in setting aside the defendant’s plea of guilty, the sentence, in quashing the indictment and holding the prisoner to await the action of the grand jury. The indictment was valid, and it was the duty of the court to try the defendant for the misdemeanor charged therein. 45 Ark., 333; Mansf. Dig., secs. 2106-7; 43 Ark., 91; 26 Id., 260; 42 Id., 35; Mansf.

C. D. Wood, Judge. 1. The evidence in this case shows beyond a doubt that the trade made by Bell with Simmes was canceled and it was not important that the bond for title should have been surrendered up and canceled. Pugh had notice of Watson’s claim of ownership, his deed being of record. Simmes was estopped to deny that Watson was his landlord and that the note was for rent, and his mortgagee stands in no better attitude. 2.

C. D. Wood, Judge. A mortgagor can create no lien superior to the mortgagee’s without his consent. Jones Chat. Mortg., 2nd ed., sec. 472. Unless the legislature clearly made the lien of a jack keeper superior to that of a prior recorded mortgage, the same rule will apply as in cases of mechanic’s liens. 5 Ark., 217; lb. 237; 8 lb., 231; 25 lb., 490. The act (Acts 1885, p. 53) gives an absolute, unqualified lien upon the females served. It is superior to all others. 30 Am.

W. G. Whipple, Special Judge. This was an action for money had and received, brought by Russell B. Gress against George W. McDiarmid. The regular judge being disqualified a special judge was chosen to preside at the trial of the cause.

R. H. Powell, Judge. The executrix appropriated to her own use the property belonging to the estate, Dec. 28, 1883. This was the time of the conversion, and fixed the liability of her sureties as it was before they were released. Mansf. Dig., sec. 35. The sureties on the bond when a default is made are liable. Murfree Off. Bonds, sec. 635 ; 32 Ark. 424. Several settlements were filed and approved after the alleged conversion, and these can only be impeached in equity. Mansf.

W. H. Cate, Judge. 1. That plaintiff’s remedy was at law is no ground to dismiss the bill for want of equity. The cause should have been transferred and have proceeded on its merits. Sec. 4925 Manf. Dig.; Ib., secs. 4927-8. The error, if any, was waived by the failure to move for its correction. 26 Ark., 54; 31 Id., 411, 422; 32 Id., 562. See also 13 Ark., 193 ; 14 Id., 50; 15 Id., 307; 17 Id., 340; 18 Id., 583; 2 Johns. Ch’y, 369; 4 Cold., 370; 5 Id., 240. 2.

J. M. Pittman, Judge. 1. The case of Beard v. Dansby, 48 Ark., 183, settles the law in favor of the appellant on the question of betterments. 2. The conveyance by metes and bounds'of a portion of a common estate by one tenant in common, is void and not merely voidable, at the election of the co-tenant. 9 Vt., 138; 9 Mass., 34; 4 Conn., 495 ; ilb.,363; 2lb.,243; 5 lb., 363; 12 Mass., 348; 19 Mich., 127; 3 Yerger, 492. 1.

Sharp Circuit Court. R. H. Powell, Judge. The bill of exceptions was properly prepared, presented, signed an'd made a part of the record. Argue on the merits, The record in this cause is not truly, properly and legally presented to this court. Unless it is shown by the bill of exceptions, in some way, that the grounds of objection are true, they cannot be made a part of the record in a cause in this court. Mansf. Dig., sec. 5160.

<p>WILLS: Jurisdiction to take probate of, in common form.</p> <p>The clerk of a probate court received the probate of a will and admitted it to record. At the next term of the court the will, together with the depositions of the subscribing witnesses which were taken by the clerk, was presented to the court, which found from the evidence contained in the depositions that the will was “duly witnessed and regular in all things” and declared it to be the last will of the testator. The court also confirmed the action of the clerk. Held: That the probate court having jurisdiction to take the probate of wills in common form without summoning any of the parties in interest, its judgment, which goes beyond the mere confirmation of the clerk’s act, and admits the will to record on proofs submitted, is not void, and if there is error in it, the same can be corrected only by appeal.</p>

J. E. Riddick, Judge. 1. No sufficient grounds for rescission were shown. Bish. Eq., sec. 190-1; lb., 230-1. 2. A vendor has an equitable lien for the unpaid purchase price of land, but he may waive it expressly or impliedly. In this case the conduct of the vendor amounted to a waiver. The intention was to rely on the obligation of the citizens, and the lien is waived. 30 Ark., 172 ; 33 Id., 240; 35 Id., 100; 46 Id., 267. 1.

C. D. Wood, Judge. 1. The plea of the statute of limitations of ten years Was a good answer to the writ of scire facias. It is true the writ is founded on the antecedent judgment, and is but a continuance of a former action. Freeman Judg., secs. 442 — 4; 10 Ark., 534.

W. H. Cate, Judge. Mrs. Mary A. Harris filed her complaint in equity against G. T. Stull, her brother-in-law, and John W. Harris, her husband, to cancel a deed executed by her and her husband in 1867, conveying to, Stull her interest in certain real estate. She charged that at the time of making the deed she was a feme covert and a minor.

<p>APPEAL from Lee Circuit Court.</p> <p>M. T. Sanders, Judge.</p> <p>In the absence of a supplemental or amended complaint, a plaintiff in replevin is entitled to recover only such damages as were the subject of a valid subsisting claim at the time of the institution of the suit, and not such as may thereafter accrue pending the litigation. Such is the law in all manner of suits, in the absence of statutory provisions. Mansf. Dig., secs. 5145, 5181, S084; ch. 128, acts 1885, p. 17. See 37 Ark., 544.</p> <p>Plaintiff was entitled to damages, that is, the usable value from the time of the taking to the rendition of the verdict. 34 Ark., 188; 361b., 260; 391b., 438.</p>

This was an action to enforce a mechanic’s lien for labor performed by the plaintiff, on a building erected on the defendant’s lot. The work for which the lien was claimed, was done by the plaintiff as the employee of one Stultz, who was the principal contractor. Stultz abandoned the work and disappeared before the building was completed. The defendant, by his answer, denies that he was notified of the plaintiff’s intention to work on the building.

J. W. Martin, Judge. 1. The act of March 17, 1885, will be strictly construed, and all persons claiming rights thereunder will be held to a strict compliance with the terms of the same.

J. W, Martin Judge. The justice had no jurisdiction. No summons was issued and no showing of service, actual or constructive. The docket should have shown such facts as were essential to jurisdiction. S Ark., 27-358; 1 Eng., 41; lb,, 182; 3 Ark., 494; 9lb.,48o; iolb.,316. No presumption will supply the omission of the record to state a jurisdictional fact. 9 Ark., 480; 10 lb., 316.

J. M. Pittman, Judge. 1. The damages were excessive. The verdict is evidently based upon the evidence of witnesses who based their ■opinions upon fanciful and purely speculative damages, and not upon the difference in the market value before and after the taking. 2. “Liability to frighten teams or stock” is not an element of damage to be considered. 41 Ark., 435; Mills Em. Dom., sec. 166; 103 Mass., 7; 24 Kas., 745; 14 A. & E. R. cases, 172; lb., 198-202.

J. M. Pittman, Judge. The Fayetteville and Little Rock Railway Company filed its petition against Thomas J. Hunt to condemn as a right of way a strip of ground one hundred feet in width through a forty acre tract of Hunt’s lands. The defendant filed no answer.

James F. Read, Special Judge. A good and sufficient deed for the land purchased should have been tendered before suit and brought into court. 39 Ark., 309.; 21 Id., 237; 23 Id., 586; 44 Id., ISO, 196; 28 Id., 32-180; 37 Ark., 626. The appellees were not the vendors of McConnell and had no interest in the lots sold. Appellant accepted the deed from McMillan, and if he discovered a mistake, he should have returned it and asked for its correction.

M. T. Sanders, Judge. The appellant as a widow was entitled to the chief dwelling-house and farm attached free of all rent, no dower having been assigned her. Mansf. Dig., sec. 2588; 40 Ark-., 393 ^ 34 Ark., 63. The dower right vests on marriage by way of lien and can only be lost by alienation by her or laches. S Ark., 608. The homestead right is in addition and not in lieu of dower, and a widow is entitled to both. 44 Ark.,. 490; 40 Id., 393; 34 Id., 63.

<p>APPEAL from Jefferson Circuit Court.</p> <p>John A. Williams, Judge.</p> <p>In 1872 the title to the lands in controversy in this suit was in the plaintiffs, subject to,a life estate in their mother, Mrs. Martha A. Mathis. On the 5th day of March of that year, the mother conveyed her life estate to the defendant. 'She was subsequently duly appointed guardian of plaintiffs, and as such applied to the probate court by petition for an order to sell their interest in the lands, stating in her application that such sale was necessary to raise funds for their support and education. The probate court granted the petition, and pursuant to its order the interest of the plaintiffs in the lands was offered for sale on the 16th of September, 1872, and the •defendant became the purchaser thereof. The sale was reported to and confirmed by the court, and the guardian thereupon conveyed the interest of the plaintiffs in the lands to the defendant, who had gone into possession under the conveyance of the life estate. The statutes.in force at the ■date of the order under which the guardian’s sale was made (Gould’s Dig., chap. 4, secs. 180, 182), provided that an •application to sell the real estate of a minor, should, when made under section 181, be verified by the affidavit of some •disinterested person, and if made under section 182, that it should be supported by the testimony of two credible witnesses. The petition for the sale of the lands in controversy is not ■embraced in the record of this cause, and it does not appear from the order made upon it, whether the application was verified or supported in the manner required by the statute. It does, however, appear from the recitals of the order, that it was made upon the written application of the guardian and that the court found that a sale was necessary for the purpose stated in the petition. Mrs. Mathis died in 1884 and in 1886 the plaintiffs brought this action to recover possession of the lands. The defendant by his answer claimed title under the guardian’s conveyance, and set out and exhibited therewith the order of sale, the report and the order of confirmation. The plaintiffs demurred to the answer and their demurrer having been overruled, they rested thereon and appealed.</p> <p>It does not appear by the record of the probate court exhibited with defendant’s answer, nor is it averred in the answer, that the affidavits required by the statute were made or filed. These were jurisdictional facts, and there can be no-presumption of the existence of such. They must appear. Const. 1868, art. vii, sec. 5; chap.,4 Gould’s. Dig., p. 134;, act Dec. 23d, 1846, secs. 180, 181, 182; 33 Ark., 428; 32 lb., 97; 19 lb., 499; 26 lb., 421; 31 Id., 74; Hawes, on Jur. 11 sec., 8; 60 Ill.,333; 62 Mo., 588; 11 Wend.,, 651; 25 N. H., 302; 35 lb., 166; 12 Ohio St., 643;, Freeman Void Jud. Sales, sec. 8; FreemanJudg., sec. 125;, Hawes on Jur., 499, sec. 259; 496, sec. 257; 1 Ohio St.,, 372; 8 lb., 613; 34 Cal., 391; 47 Ill., 25; 39 Conn., 199; 18 Wall., 364; 28 Grat., 879; II Mo. App., 34.</p> <p>The court having no jurisdiction, the confirmation of the sale was inoperative and nugatory. Freeman Void Judicial-Sales, sec. 44; 2 Wall., 609; 94 U. S., 74; 2 How. (U. S.), 57-</p> <p>The probate court had jurisdiction. 45 Ark., 48. Presumably the law was complied with,, and this presumption is-conclusive. 47 Ark., 413. A remainder after a life estate is the subject of sale. Rorer Jud. Sales, 259, 261. The-guardian, under the orders of the probate court, had'the authority to sell. 4 Mass., 190; Schouler Dom. Rel., 367,, 368.</p> <p>The probate court had jurisdiction of the subject matter,, and there being no fraud or irregularity the sale must stand. Schouler Dom. Rel., 336; L. R. 6 Chy., p. 850; L. R. 14. Eq., 251.</p>

John A. Williams, Judge. Having lost the benefit of his motion for a new trial, without fault, appellant was entitled to relief in equity. 35 Ark., 123. Oral proof was admitted, when the deed should have been produced. Gr. Ev., 1 vol., sec. 82, (14th ed.) The court erred in its instructions to the jury, and the verdict was influenced by these erroneous instructions, and the incompetent parol testimony admitted. A new trial should have been granted. See 35 Ark., 123.

CROSS-APPEAL from Howard Circuit Court. Geo. P. Smoote, Special Judge. 1. No prayer for appeal'was made or filed with the affidavit, and no order granting the appeal by the county court or clerk of the circuit court, and the court had no jurisdiction. Mansf. Dig., 1436; 26 Ark., 414; 21 Ark., 93; 9 lb., 128; IS lb., 169; 31 lb., 725. 2.

D. W. Carroll, Chancellor. A trust will not result to one who pays a part only of the consideration of land conveyed to another, unless it be some definite part of the whole consideration. 2 Paige, 238; 15 Wend., 647. Under no circumstances will a resulting trust be greater than the part of the consideration paid. Hill on Trustees, 144; 7 B. Mon., 433; 9 Paige, Chy., 334; 4 J. J. Marsh., 590; 6 Cowen, 706; 35 Me., 41; 14 Ill., 505. The claim is stale. 41 Ark., 301.

M. T. Sanders, Judge. Contend that laborers have a lien for digging a well under sec. 4402, Mansf. Dig.; 27 Ark., 568; 29 lb., 597; Act July 25th, 1873; Mansf. Dig., secs. 4406-7; 32 Ark., 59. laborer’s lien laws are liberally construed. Sec. 4409, Mansf. Dig., limits the lien to a building,tenement or edifice. A well is neither one or the other. This section limits and qualifies, sec. 4402. These statutes are strictly construed. See authorities cited .by appellants.

J. B. Wood, Judge. 1. A demurrer to an answer relates back to the complaint, and if the complaint is insufficient the demurrer to the answer should have been overruled. 31 Ark., 301. 2. The judgment under which appellee claims being rendered by the circuit court against an administrator, the execution and sale under it are void, and nothing passed by it.

R. H. Powell, Judge. 1. It was error to render judgment on the countei'-claim on the affidavit of defendant. Sec. 291S Mansf. Dig., is derogatory of the common law and ought not to be extended further than its plain language. Defendant should have been required to prove his claim. 2. No service was had on plaintiff, or appearance entered. 1. The counter-claim was proven as required by Mansf. Dig., sec. 1529. 2. No summons or service was necessary. Sec. 5166.

C. W. Smith, Judge. 1. Diver never made any appropriation of payments but agreed to it as made and all the debts were due at the time made. 28 Ark., 440; 44 Id., 90; 50 Ark., 775. 2. The justice’s judgment was void, being for over $300 and the court had no jurisdiction. Sec. 40, Art. 7, Const. 1874. The question of the proper appropriation of payments is settled by Hershy v. Bennett, 41 Am. Rep.; 39 Ark., 248; 2,7 Am. Dec., 621; 9 Wheat, 720..

<p>Opinion on motion to advance.</p> <p>Practice in Supreme Court : Motion to advance canse.</p> <p>To justify a motion to advance a cause upon the docket on the ground that the appeal is prosecuted for delay merely, the absence of error should be apparent upon a short and cursory examination of the record. Where the court cannot determine whether there is probable ground for the appeal without a minute investigation of the record requiring such time that it would operate to delay other causes having precedence on the docket, the motion will be denied.</p>

J. E. Riddick, Judge. Appellants were liable only for nominal damages. The goods were not sold under their attachment, but under the executions. The judgment creditors had a right to issue executions when they saw proper. No man can be held liable for inducing another to do a lawful act. 34 Ark., 710; 37 Id., 620. But even if appellants were liable, there must be a separate action. 34 Ark., 710. No damages actually resulted from the levy of the attachment.

Jno. M. Bradley, Judge. 1. There had been a final settlement of the estate; all debts had been paid; there was nothing more for an administrator to do, and the judgment passed by law to the heirs at law. They had the legal title to it and could assign to whom they pleased. 6 Wallace (U. S.), 458,‘ 461. 2. The affidavit of Winningham was all that could be required in this case. The affidavit required by sec. 106, Mansf. Dig., not necessary under the circumstances. Mansf.

T. P. McGovern, Special Judge. 1. If the deed was void for uncertainty, still it is a memorandum in writing reciting a sale of land for value paid. This with possession is equivalent to a title bond, and imposed upon Hunt the obligation to specifically perform by describing the lands properly. 2. The return of the deed to Hunt did not reconvey the land, nor release him from reforming. 34 Ark., 503. 3. Glasscock purchased with notice and takes subject to appellant’s equities.

Chas. W. Smith, Judge. We refer the court to our abstract and brief in this case at large and here again state the points and authorities: A tax deed for the taxes of any year which have been paid by the owner is fraudulent and void. Shell v. Martin, 19 Ark., 139; Wallace v. Brown, 22 Ark., 118; Kinsworthy v. Austin, 23 Ark., 375; Davis v. Hare, 32 Ark., 386; Hickman v. Kempner, 35 Ark., 505. Where the sale is thus fundamentally void no affidavit is required by the statute.

APPP5AL from Washington Circuit Court. J. M. Pittman, Judge. 1. If in contemplation of the parties it was not intended that the money should be repaid, the law will not imply a promise to repay. Chitty on Contracts, p. 23 ; 3 Addison on Contracts, secs. 1408 — 9. The action for money had, etc., is an equitable action in its nature and cannot be maintained where it is inequitable to make a party repay the money. 2 Greenl. Ev., sec. 117. 2.

J. W. Martin, Judge. The mortgage is so indefinite and uncertain that it conveys nothing against the claims of third persons. 11 N. W. Rep., 621. 1. The description in the mortgage was sufficient. It could be made definite by extrinsic proof. 79 Ala., 335 ; 66 Id., 258; 78 Id., 28; 65 Id., 256; 92 U. S., 325; Thomas on Mortg., 55,56; 65 Ga., 644; Jones Ch. Mortg., 64. 2. No verbal agreement can constitute a lien against a recorded mortgage, not even with a landlord. 5 Heisk.

<p>APPEAL from Crittenden Circuit Court,</p> <p>J. E. Riddick, Judge.</p> <p>The manifest purpose of the present proceeding is to avoid' a settlement by Mrs. Eliza Wallace, or her representative, of her administration of R. C. Wallace’s estate, and to collect from that estate the sums of money which she or her representatives have paid, without reference to the state of her accounts as administratrix, or the amount of her indebtedness to the estate on a proper settlement of her administration. I submit this cannot be done. Underwood v. Milli-gan, io Ark., 254; Bom ford v. Grimes, 17 Ark , 5 67; Tyner v. Christian, 27 Ark., 306; Yardorough v. Ward, 34 Ark., 204.</p> <p>2. The claims were barred.</p> <p>That these were just claims against the estate, being for attorneys’ fees and taxes, and were entitled to be allowed as expenses of administration, see 30 Ark., 520; 27 Ark., 306; 30 Id., 312; 34 Id., 204; 38 Id., 139. The admin-istratrix clearly had the right to have these claims allowed, and having died her representative has the same right. Authorities supra.</p>

<p>Execution Lien : Superior to prior unrecorded mortgage.</p> <p>The lien on land acquired by the levy of an execution, is superior to that of a prior unrecorded mortgage, although the mortgage is subsequently filed for record before the sale of the land.</p>

Jno. A. Williams, Judge. Plaintiff was certainly not barred of her dower by any law in force at the time the acknowledgment was made. What then is the effect of the curative act of 1883? The act declares that such deed shall be held to pass the-estate which it purports to convey. In this case the deed purports to convey the fee, and the act makes it good for that purpose.

J. W. Martin, Judge. The probate court had no jurisdiction to make the order. Mansf. Dig., sec. 3; 33 Ark., 824; 38 Id., 243. The order fails to recite jurisdictional facts, but on the contrary fehows affirmatively that the court did not undertake to determine the value of the estate, nor to vest the entire estate, but did undertake to vest the land in controversy in the widow after determining its value alone, without regard to the rest of the estate. 33 Ark., 824.

C. W. Smith, Judge. The notes were payable in cotton and no vendor’s lien can be enforced thereon. 37 Ark., 348. Norwas Pelt the vendor at all and hence could have no lien. No lien was reserved in the deed in favor of the vendor even, and certainly the assignee of the notes had none. Gantt’s Dig., sec. 174 and cases cited. The substitution of a new note with the recital that it was for purchase money, gave no lien.

J. W. Martin, Judge. The note was null and void for want of consideration. The policy was void by its own terms after Dec. 1, 1885, and appellee not being bound in case of loss, appellant was not bound. The application, note and policy all constitute one contract (7 N. W. Rep., 139), and the question is, What is. the contract? In a similar case the policy was held void, and the risk being ended thát there was no liability for the deferred premium. 41 Mich., 385.

Smith District. Jno. S. Little, Judge. A city marshal is a ministerial officer. 2 RapaljS Law Dec., 822; 39 Ark., 82, The presumption is that he complied with the ordinance, until the contrary is shown. Whart. Legal Max., lxv, 14.5; 2 Ark., 26; 25 Id., 311; 30 Id., 69; 31 Id., 609; 12 Wheat, 69; 8 Conn., 134; 3 Yerg., (Tenn.), 308; 10 Am. Dec., 680; 45 Miss., 71; 20 Kas., 572. Plaintiff must make out her case by a preponderance of evidence. Mansf. Dig., sec. 2870-1.

D. W. Carroll, Judge. Chapter 104, Mansfield’s Digest repeals by implication so much of sec. 4489, Mansf. Dig. as exempted a married woman from the statute. 47 Ark., 558. The Constitution of 1874 authorizes her to convey as a femme sole. 43 Id., 160. Her name is omitted from the privileged class in the. matter of redemption of lands, by act March 31, 1883. Mansf. Dig., sec. 5772- After that time she has only two years to redeem, or she is barred.

J. M. Pittman, Judge. 1. The injury occurred on the road of a Missouri corporation which had no legal existence in Arkansas. 16 How. U. S., 325; 13 Pet., 519; 13 Wall., 270. This company is not liable for an injury occurring on another road. Wood & Field on Corp. 2nd ed., sec. 326. 2. The damages are excessive. The verdict an outrage. 46 Ark., 275 ; 25 Id., —; 39 Id., 387. 3.

C. E. Mitchel, Judge. 1. Contributory negligence. By plaintiff’s own confession he was guilty of such contributory and palpable negligence as to preclude a recovery. S McCrary, 471; 75 Ill., 108; 27 Minn., 141; 47 Miss., 420; 12 Mete,, 415 ; 41 Miss., 131; 2 M. & W., 244; 1 Ad. &E1., 36; 4 Beng., 142; 9 Hill, 522; 17 Fed. Rep., S82; 39 Id., 620; 74 Ind., 445. 2. Disobedience of rules.

J. .S. Little, Judge. This appeal is from a conviction for selling intoxicating' liquor without a license. The only evidence given to the jury was that of a witness (John Edmonds), tLho testified that at a dance he asked the defendant if he, the witness, could get any whiskey to drink. The defendant replied that he had no whiskey himself but thought he could get the witness some,, and told the latter what it would cost.

John S. Little, Judge. This is an action to recover damages for the breach of a-contract for the sale of real estate.

<p>Specific Performance: Of agreement to assign interest in patent.</p> <p>A court of equity has power to order the specific performance of an oral agreement, entered mto before the issue of a patent, to assign an interest therein, in consideration of expenses borne in procuring it. And it is not error to decree a direct divestiture of the interest contracted for, instead of compelling the patentee to assign it.</p>

Smith District. Jno. S. Little, Judge. The court erred in overruling the demurrer to the 3rd and 4th paragraphs of defendant’s answer. The company constructed its track without the consent of the property owners, without proceedings of condemnation, or making compensation ; the city ordinance was void; nor did the company get the consent of two-thirds of the property owners as required bylaw. (Mansf.

C. E. Mitchel, Judge. At the time of the arrests each and all of the plaintiffs were acting as a posse comitatus, and as special deputy sheriffs, and as members of the Arkansas State militia, under the direction and control of the sheriff of Miller county. They were acting at the time in the capacity of peace officers or officers of the law, and they cannot claim the reward; and the offer (or contraet), as to them, is void as being contrary to public policy.

M. T. Sanders, Judge. 1. The testimony of Dr. Youmans as to contents of telegram was hearsay, and as to statements made by deceased not part of the res gestae, and inadmissable. 9 N. E. Rep., S05; 42 Ill., 438; 95 N. Y.,'774; 3 Conn., 250; 7 Cush., 586; 9 Cush., 41; 43 Ark., 102; 101 N. Y., 126; 48 Ark., 333. They were not dying declarations. 48 Ill., 475 ; 6 Brad., (Ill.) 569; Pierce on R. R., p. 400; 2 Ark., 246; 97 Ill., 101; 24 Kan., 89. 2.

<p>APPEAL from Ashley Circuit Court.</p> <p>C. D. Wood, Judge.</p> <p>This suit was brought by certain tax payers of Ashley county to restrain the county clerk from extending upon the tax books of that county for the year 1887 an increased or ‘ ‘ raised ’ ’ valuation of their lands made by the county board of equalization. After the action was commenced all the other land owners of the county were made parties plaintiff and the board were made defendants. The complaint states: That the assessor appraised the plaintiffs’ lands at their true market value; that the board of equalization proceeded to raise the assessor’s valuation and gave to the plaintiffs no notice of such increase in value, by postal card or otherwise through .the mails, as provided by statute; and that the clerk was about to extend the increased valuation on the tax books. 'The complaint, as amended, also alleged that the assessor failed to affix to his assessment the affidavit required by the .statute. The answer admits that the statutory notice wá.s •not given, but alleges that ‘ ‘ timely notice was given by personal communication and by publication -in a newspaper published in the township; ’ ’ that none of the plaintiffs were aggrieved by want of sufficient notice, and that four of the •original plaintiffs had appealed from the action of the board to the county court where, upon a hearing of the appeal,, the valuation of the board was sustained. The answer also alleged that the board had only raised the valuation of the land to its actual value. A demurrer to the complaint was •overruled and a demurrer to the answer sustained. The •court having found that the board raised the valuation of plaintiffs’ lands and neglected to give notice thereof as required by sec. 52 of the act of March 28, 1887, decreed that the extension of the board’s valuation on the tax books should be perpetually enjoined. The board appealed. Section 52 of the act referred to provides that the board of equalization, “ where it raises the valuation of any property, personal or real, shall give to the owners of the property so 'raised in valuation or their agents, notice by postal card of otherwise through the mails, of such increase in value, stating the valuation as returned by the assessor and the valuation as fixed by the board,” and advising such owners that they may appear before the county court and show cause " why the valuation of their property should not have been raised.” Acts 1887, pp. 172, 173. Section'31 of the 'same act (p. 163) provides that the assessor shall append to his return of the assessment of real estate an affidavit that the foregoing is correct, and that he has ‘ ‘ appraised each tract or lot of land * * * at its true value in money, and not at what it would bring at auction or at a forced sale.” The affidavit of ■ the assessor referred to in the complaint in this case was that ‘ ‘ the foregoing is correct, ’ ’ and he had appraised ‘ ‘ each tract * * * at its true value as it was rendered to ” him “ tinder oath by the tax payers, owners, agents and all other sources of information that” he ‘‘had been able to ascertain.”</p> <p>1. Failure to give notice as required by statute does not invalidate the proceedings of the board. 49 Ark., 518; 43 Wis., 620; 42 Id., 502; 42 Ark.,-563; 41 Id,, 531; Acts 1887, sec. 52; 76 Ill., 201.</p> <p>2. The remedy was by appeal to the county court. Injunction was not the remedy. 49 Ark., 518; High on In]., secs. 486-7.</p> <p>3. A plain remedy is also pointed out by secs. 5857-8, Mansf. Dig.</p> <p>1. No notice having been given, the increase of valuation by the board was void. Mansf. Dig., sec. 5201; Acts 1887, p. 172, etc., sec. 52, etc. Equity will restrain the execution of void judgments. Mansf. Dig.,, p. 77o, sec. 3731 >' 33 Ark., 633. It is the only forum for land owners having no notice to get relief. 30 Ark., 279, 284-5; lb. 594; 33 lb., 778; 30 lb., 609.</p>

J. A. Williams, Judge. At the July term of the Desha county court, the appellee Jones, presented for allowance two claims against that county. The first of these claims was upon an account stated in the following form: Circuit Court Acct. Desha county in account with J. P. Jones, late clerk, for fees due at the Watson district, Feby. and August terms, 1886.

R. H. Powell, Judge. Orr and Lindsley recovered judgment against the appellee, Doughty, in the Izard circuit court in March, 1884, and sued out execution thereon in February, 1887. The execution was levied on two tracts of land, one containing fifteen and the other eighty acres. Doughty filed with the clerk a schedule, claiming the exemption of the lands as a homestead, outside any city, town or village, and obtained a supersedeas staying any sale under the execution.

J. M. Pittman, Judge. 1. While in most cases delivery of a deed should be ■shown, yet if the deed is found in the grantee’s hands, a delivery and acceptance is always presumed. Wash. Real Pr., p. 294. A conveyance may be made to a minor or lunatic, .and the law presumes acceptance by or for them. Ib., p. 291. 2. The facts in this case clearly sustain the presumption •of law that an advancement was made by the father to his •child. Story’s Eq. Jur., pp. 445-6, sec. 1202-3.

J. B. Wood, Judge. The evidence in this case shows that the broker was the agent of the borrower. If a greater amount than ten per cent, was exacted, it was for the broker’s commissions, notary’s fees, etc., and did not constitute the loan usurious.' See 9 Ark., 23; 25 Id., 190, 258; 116U. S.,98; 23 Fed. Rep., 162; 46 N. J. Law, 35; 106 Ill., 549; 31 Minn., 495; 91 N. Y., 324; 92 N. Y., 34; 13 Neb., 157.

J. W. Martin, Judge. 1. The facts proven do not warrant the finding that W. J. Thompson was the owner of the note, and Walton making the loan for him. The money was placed in Walton’s hands as John F. Thompson’s money, to buy notes, and his action in loaning at usury could not affect Mr. T.’s right, nor could it affect W. J. Thompson’s rights if the money was his.

J. B. Wood, Judge. 1. The taking of interest in advance is not usurious. 8 Wheat., 338, 364; 87 Ill., 51. Nor is the taking a commission or brokerage by the agent of the borrower. 51 íowa, 397; 26 Ark., 191; 25 Id., 195 ; 26 Id., 352; 18 Id., 463; 25 Id., 258; 21 N. Y., 531 to 539; 2 Tenn., 52; 1 Hilton, 532. 41 Ark., 331, sustains our position, pp. 337, 342-3.

J. B. Wood, Judge. There was no evidence that Rexhouse had or had not paid his license tax, nor as to whether appellant had any notice or knowledge as to this. The State, should have been required to prove that Rexhouse had no license, in order to make out a case. 1 Gr. Ev., secs. 79, 80. argued orally, and contends that the instructions are sustained by the authorities. 25 Oh. St., 381; 83 Ill., 431; 38 Ark., 518.

<p>New TRIAR: For misconduct of jury.</p> <p>On a trial for murder, the defendant having testified that the deceased made such an attempt to shoot him with a pistol as would have justified the killing, the jury after retiring obtained the pistol and cartridges used by the deceased and experimented with them, apparently for the purpose of testing the truth of the defendant’s statement. Held: That this was talcing evidence out of court and in the defendant’s absence, and was such misconduct on the part of the jury as entitled him to a new trial.</p>

PETITION for Writ of Prohibition. 1. The act of January 23, 1875, was never constitutionally passed. The journal affirmatively shows the second reading by title only. When the journal speaks presumptions cannot be indulged. 31 Ark., 718; 32 Id., 518; 33 Id., 25;. Lawson Pres. Ev., p. 569, et seq. 2. Said act, in so far as it confers jurisdiction upon the county court to try contested election cases, is unconstitutional.